The main legal point established is the prohibition of the right to recover property held benami under the Benami Transactions (Prohibition) Act, 1988, and its applicability to the case.

JUDGMENT :

S.K. Mishra, J.

In this writ petition, the petitioners have challenged the order dated 26.02.2000 passed by the learned Joint Commissioner, Settlement and Consolidation, Berhampur in Revision Case No.368 of 1998 directing joint recording of the land in question in favour of opposite ti party Nos. 3 to 6 in respect to L.R. Khata No.911 pertaining to L.R. plot No. 1505/3049 and 1505 measuring an area of Ac.0.050 decs, and Ac. 1.685 it decs, of land situated in village Baunsalundi in rayati status.

2. The common ancestor of opposite party nos. 3 to 6 is Arjuna Gouda. He had married one Mohadei Gouda, Mohan Gouda opposite party No.4 is their son and Surendra Gouda-opposite party No.3 and Rabi Gouda, opposite party No.5 are the sons of Mohan Gouda opposite *|' party No,4. After death of Mohadei Gouda, Arjuna Gouda married Sulava Gouda-opposite party No.6 and at the time of marriage, she got gold 0 ornaments and house hold articles from her father as gift.

On 07.04.1959, the opposite party No.5 purchased total area of Ac.1.84 dec. of land pertaining to Sabik Patta No.8, Survey No.198/IB which measuring area Ac.1.06 cents and Survey No.199 area Ac.0.78 cents out of Ac.1.141 cents in village Baunsalundi for a consideration amount of Rs. 2,000/- by a registered deed of sale No. 1283 from Gangadhar Pradhan and Birupakhya Pradhan. It is alleged by the petitioners that the said land has been purchased by the opposite party No.6 out of the sale proceeds of gold ornaments that were gifted by her father. On 10.04.1996, the opposite party No.6 in order to liquidate her debts and to maintain herself, sold total area of Ac.0.94 cents pertaining to Hal Plot No.1505 area Ac. 0.915 dec. out of Ac.1.685 dec. and Hal Plot No.1505/3049 area Ac.0.25 dec. out of Ac.0.50 dec. in favour of the petitioner late Kashinath Pradhan for a consideration amount of Rs. 54,000/- by a registered deed of sale. Then, consolidation operation was started in the concerned village and land register was prepared and published in the name of the opposite party no.6 showing the land particulars. On 22.06.1998, the opposite party nos. 3 to 5 and others interfered with the possession of the petitioner late Kashinath Pradhan in respect of the property purchased from the opposite party no.6 for which he filed a suit for permanent injunction in the Court of learned Civil Judge (Junior Division), Bhanjanagar bearing T.S. No.13 of 1998. In the said suit, the opposite party Nos. 3 to 5 filed their written statement and counter claim on 14.07.1998.

On 08.09.1999, the petitioner filed an objection before the AC0, Bhanjanagar to record the land in question as per the sale deed dated 10.04.1996 which was registered as Objection Case No.166 of 1999 and after issuing notice to the opposite party No.6, the ACO, Bhanjanagar allowed his claim vide order dated 08.09.1999 taking into consideration the Amin's report. The Opposite party Nos. 3 to 5 never filed any objection before the ACO, Bhanjanagar, but they filed an application under Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the OCH & PFL Act" for brevity" and it was registered as Revision Case No.368 of 1998, wherein they prayed that the land in question may be recorded in their names purchased by late Arjun Gouda out of Stridhan property of Mahadei Gouda.

3. The opposite party no. 1-Joint Commissioner Settlement and . Consolidation, Berhampur without issuing notice to the deceased petitioner directed joint recording of the land of the late petitioner in the names of (the opposite party Nos.3 to 6. Learned Joint Commissioner Settlement and consolidation, Berhampur held that he has jurisdiction to decide , whether the transaction in RSD No.1283 of 1959 is benami or not and also it has been held that the RSD No. 1283 of 1959 executed by Gangadhar Pradhan and Birupakhya Pradhan in favour of the opposite party No.6 is. a benami transaction.

4. This